Overtime in Tennessee Child Support Law

Historical overtime earnings can be considered in setting either parent’s income under Tennessee child support Guidelines even if overtime is not guaranteed to the employee/parent.


Overtime Earnings Are Income Under the Guidelines

Working Overtime Can Increase a Parent's Tennessee Child Support Obligation

Working Overtime Can Increase a Parent’s Tennessee Child Support Obligation

The subject of overtime income can lead to grief during child support calculations because, like the claiming of the child as a dependency/exemption for income tax purposes, overtime pay carries emotional attachment for the parent who worked the extra hours.  The question for the court becomes finding a fair way to take the overtime pay into consideration so that the child benefits from the additional income, just as would be the case if the parents were cohabiting.

As always, one starts the child support question with a strict computation of child support in accordance with the Tennessee “Child Support Guidelines.”  The guidelines are clear that all income from all sources must be captured and put into the calculation, and this includes overtime income.

The issue arises that the Guidelines are equally clear that “variable income,” which can include overtime pay, commissions, bonuses, and dividends, should be averaged over a period of time consistent to the facts of the case.  This “variable income” is then added to routine wages or salary to calculate a parent’s gross income for child support purposes.

The Tennessee Guidelines Require Consideration of Overtime But Judges Decide on a Case By Case Basis

The approach set out in the Guidelines creates an opportunity for both parents to make arguments relative to overtime earnings.  For the employee who worked overtime, arguments can be made that it was a unique event, that it had not occurred in previous years and would not occur again, that there is no guarantee the overtime will continue, that the overtime was not desired or sought but was imposed under special circumstances like lay-offs or a hiring freeze.

For the employee working overtime, a successful argument against the strict inclusion of all overtime in the child support calculation, the battle is fact intensive, may require a hearing, and will require documentation and third party witnesses such as an employer or supervisor.  One scenario might be limited overtime for the completion of a single work project.  Another might be a temporary overtime to cover responsibilities for an injured co-worker.  The burden of proof will be on the parent who worked overtime, and it will require detailed proof as to dates, wages, and circumstances.

The primary residential parent, however, has a chance to put up a response, which could include a longer employment history, including overtime known to be worked while married or cohabiting, media reports about the employer for things like increased production and government contract awards, or even presentation of rebuttal witnesses who may be co-employees.

Ultimately, the issue of overtime pay relative to the child support calculation is at the discretion of the court.  A judge may determine that it is appropriate to capture all of the overtime pay, but to smooth it out through income averaging over a period of two or more years.  Or, in a case involving a request for a modification, the court may find that the income modification threshold was not met because it was a unique, non-sustained or sustainable event.

Example of Overtime in Tennessee Child Support Law

Overtime Can Benefit Children after a Tennessee Divorce

Overtime Can Benefit Children after a Tennessee Divorce

In one case that included the issue of overtime pay, the father, himself, provided the essential testimony that sealed the decision that his overtime pay should be included in the child support calculation.  The father testified that he had not received overtime pay for the preceding two weeks, later responding to questions that overtime would be starting again, saying, “It always does.”  This case, John Ambler Widener vs. Stephanie Elizabeth Widener, No. M2010-02435-COA-R3-CV (Tenn. Ct. App. 2011) illustrates how a fact-intensive matter like the inclusion of overtime pay in a child support calculation often comes down to the responses to one or two questions, which give the judge all the facts he needs.



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